Editors Note Book - David Crisp

Article 5 convention looks like stinker of idea

Last week the Outpost ran a letter by Sen. Roger Webb, R-Billings, who argued that states should call a convention to consider amendments to the U.S. Constitution. Here’s why that is a bad idea.

Article 5 of the Constitution allows it to be amended in two ways. First, two-thirds of the members of each House can propose amendments that become part of the Constitution if they are ratified by three-fourths of the states. That has happened 27 times.

Second, two-thirds of the state legislatures can apply to hold a convention to propose amendments, which must then be ratified by three-fourths of the states. That has never happened.

Sen. Webb is one of many political figures pushing for a state convention. Rep. Art Wittich, R-Bozeman, has introduced such resolutions in past legislative sessions.

This session, at least two resolutions have been introduced: one, by Matthew Monforton, R-Bozeman, calls for a balanced budget amendment to the Constitution. The other, by Ellie Hill, D-Missoula, would roll back the Supreme Court’s Citizens United decision.

Nationally, supporters of a convention include John Kasich, governor of Ohio and a possible presidential candidate, and Rob Natelson, the former University of Montana law professor who has made Article 5 a specialty.

But supporters and opponents do not break down neatly along partisan lines. Opponents include the John Birch Society and conservative icon Phyllis Schlafly.

Sentiment is split in part because nobody knows just how a first-time convention of the states would play out. Opponents fear a runaway convention that would rewrite whole sections of the Constitution.

Sen. Webb’s letter, for example, expressed concerns not only about the budget but also about privacy, due process, environmental regulations, speedy trials and eminent domain.

A caller to Aaron Flint’s radio talk show last week said she favored a convention in part because of concerns over water rights. Water rights aren’t mentioned in the Constitution and water rights law has a long and complex history that draws on common law, treaties, compacts and the Constitution’s Commerce Clause. Would she incorporate all of that into the Constitution, or throw it all out and start over?

Nationally, the Citizens Flag Alliance wants an amendment to protect the American flag against desecration. Talk-show host Mark Levin has called for an Article 5 convention to consider 11 amendments, including one that would make it easier to amend the Constitution.

Many conservatives want to amend the Constitution to overturn Roe vs. Wade and ban gay marriage. Liberals would love to the pry the cold, dead fingers of the National Rifle Association off the Second Amendment.

Nearly all of the states have submitted applications for a convention over the years. Just since 2000, applications have been submitted to amend the Posse Comitatus Act, set term limits and require that the national debt can be raised only with approval of a majority of state legislatures.

Mr. Natelson was scheduled to meet with legislators this week to discuss Article 5. I don’t know what he said, but his position is clear in a variety of public statements and papers, including one prepared for the American Legislative Exchange Council, which suggests draft legislation on a wide range of issues.

Mr. Natelson argues that the states could easily mitigate the dangers of a runaway convention. They can set the scope of the convention and recall renegade delegates. If all else fails, the requirement that amendments be approved by three-fourths of the states would limit what could pass.

Naturally, others disagree, in part because the historical precedents Mr. Natelson relies on all occurred before the Constitution went into effect. A convention of states would break new legal ground, with uncertain results.

But let’s assume Mr. Natelson is right and a convention is called solely to consider a balanced budget amendment, which some 24 states already have called for. Good idea? No.

Consider the wording of Rep. Monforton’s Montana resolution: “in the absence of a national emergency the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenue for the fiscal year, together with any related and appropriate fiscal restraints.”

Even that straightforward wording leaves key questions unanswered. Who estimates the revenue? What insulates the estimator from political pressure?

And what constitutes a national emergency? Arguably, the United States has been in a state of national emergency since Sept. 11, 2001, rendering the current debate meaningless.

Does a fiscal recession constitute an emergency? Or would we placing a constitutional ban on the theories of John Maynard Keynes?

And why do we need a constitutional amendment to get Congress to do what Congress already has the authority to do?

Congress knows perfectly well how to balance a budget. We did it in 1993 with a series of modest tax increases, targeted tax cuts, simple welfare reforms and reasonable curbs on spending. Every Republican voted against the tax increases, and the GOP was rewarded in the next election by taking control of both houses of Congress for the first time since 1952.

The problem wasn’t that we couldn’t balance the budget. The problem was, and is, that Americans want more government than they are willing to pay for. Politicians may be venal, but they aren’t stupid, and they give voters what voters want.

Surpluses held until 2001, when Congress rolled back those tax increases, and the Sept. 11 attacks spurred new spending. We have run deficits ever since.

Deficits soared during the fiscal collapse of 2008, but they have since been declining. Public debt as a percentage of Gross Domestic Product is about where it was in 1952. The deficit as a percentage of GDP is lower than it was during the Reagan presidency. Federal spending per capita has been falling since 2009.

By comparison, federal debt as a percentage of GDP was about 35 percent in the 1790s because of Revolutionary War debt. In 1792, the infant U.S. federal government spent $5.1 million and took in only $3.7 million. The public debt was $77 million in a year when GDP was only $225 million.

So today’s situation would have been familiar to the founding fathers. The canniest of the bunch, James Madison, warned against calling for state conventions when election to them would be “courted by the most violent partizans on both sides.”

He added, “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America.”

As usual, he had it right. The problem isn’t the Constitution. The problem isn’t politicians. The problem is us.